Transcript Alaska Court System Nuts & Bolts OLLI Class March 18, 2015 I. JUDICIAL INDEPENDENCE – KEYSTONE TO JUSTICE II.

Alaska Court System
Nuts & Bolts
OLLI Class
March 18, 2015
I. JUDICIAL INDEPENDENCE – KEYSTONE TO JUSTICE
II. STRUCTURE OF THE ALASKA COURT SYSTEM
III. SELECTING AND RETAINING ALASKA JUDGES
IV. ALTERNATIVE DISPUTE RESOLUTION
DECISIONAL INDEPENDENCE
A judge’s ability to render decisions based only on the
facts of each case and the applicable law, free of
political, ideological, or popular influence.
INSTITUTIONAL INDEPENDENCE
The judiciary’s role as a fully co-equal branch of
government, separate from the legislative and
executive branches.
Article 4 - The Judiciary
(First Three Sections)
§ 1. Judicial Power and Jurisdiction
The judicial power of the State is vested in a supreme court, a superior court, and the
courts established by the legislature. The jurisdiction of courts shall be prescribed by
law. The courts shall constitute a unified judicial system for operation and
administration. Judicial districts shall be established by law.
§ 2. Supreme Court
(a) The supreme court shall be the highest court of the State, with final appellate
jurisdiction. It shall consist of three justices, one of whom is chief justice. The number of
justices may be increased by law upon the request of the supreme court.
(b) The chief justice shall be selected from among the justices of the supreme court by a
majority vote of the justices. His term of office as chief justice is three years. A justice
may serve more than one term as chief justice but he may not serve consecutive terms in
that office. [Amended 1970]
§ 3. Superior Court
The superior court shall be the trial court of general jurisdiction and shall consist of five
judges. The number of judges may be changed by law.
Alaska Courts
Supreme Court
One Court with five Justices
All Appeals
Discretionary Review of Criminal Appeals
Court of Appeals
Civil Appeals
Criminal Appeals
One Court with three Judges
Criminal Appeals
Superior Court
12 Courts with 40 Judges
Court of General Jurisdiction
All cases except some appeals
Criminal Appeals
Civil Appeals
District Court
44 Courts with 19 Judges and 53 Magistrates
Misdemeanors and violations
Civil cases involving claims up to $100,000
Magistrates’ authority
Misdemeanors and violations
Civil cases involving claims up to $10,000
Filings 2012-2014
SUPREME COURT
FY 2012
FY 2013
FY 2014
Filings
428
406
408
Published Opinions
155
142
171
COURT OF APPEALS
FY 2012
FY 2013
FY 2014
Filings
265
300
384
Published Opinions
187
129
133
TOTAL APPELLATE FILINGS
693
706
792
FY 2012
FY 2013
FY 2014
Filings
22,002
22,740
22,523
Dispositions
20,992
21,618
22,331
FY 2013
FY 2014
SUPERIOR COURT
DISTRICT COURT
FY 2012
Filings
128,954
116,042
109,509
Dispositions
135,622
117,411
110,021
150,956
138,782
132,032
TOTAL TRIAL COURT FILINGS
METHODS TO SELECT JUDGES
APPOINTMENT
ELECTION
“MERIT SELECTION”
APPOINTMENT
DIVINE RIGHT OF KINGS
King Charles I being
crowned, possibly
by a hand from God
The divine right of kings … asserts that
a monarch is subject to no earthly
authority, deriving the right to rule
directly from the will of God. The king
is thus not subject to the will of his
people, the aristocracy, or any other
estate of the realm…The doctrine
implies that any attempt to depose the
king or to restrict his powers runs
contrary to the will of God and may
constitute a sacrilegious act.
MAGNA CARTA
“In 1215, when King John confirmed Magna Carta
with his seal, he was acknowledging the now firmly
embedded concept that no man--not even the
king--is above the law. That was a milestone in
constitutional thought for the 13th century and for
centuries to come. In 1779 John Adams expressed it
this way: "A government of laws, and not of men.”
http://www.archives.gov/exhibits/featured_documents/magna_carta/legacy.html
“The state of monarchy is the
supremest thing on earth.”
-King James I of England
Basilikon Doron, 1597-1598
A manual on the powers of a king
PRE-REVOLUTION
Judges in England and the
colonies were appointed by and
served at the pleasure of the King.
There was no separation of
powers and judges had limited
ability to rule against the King’s
wishes.
King George III of England
Judges who acted
independently were subject to
removal from office.
DECLARATION OF INDEPENDENCE
“…He has obstructed the Administration of
Justice by refusing his Assent to Laws for
establishing Judiciary Powers. He has made
Judges dependent on his Will alone, for the
tenure of their offices, and the amount and
payment of their salaries.”
THE FEDERALIST PAPERS
…If then the Courts of justice are to
be considered as the bulwarks of a
limited Constitution, against
Legislative encroachments, this
consideration will afford a strong
argument for the permanent tenure
of Judicial offices, since nothing will
contribute so much as this to that
independent spirit in the Judges,
which must be essential to the
faithful performance of so arduous a
duty…
FEDERALIST NO. 78
-Alexander Hamilton
1st U.S. Court for Alaska: 1884
A single judicial district, based in Sitka
A single judge, based in Sitka
Alaska’s First Judge
Chosen By Direct Presidential Appointment for 4-Year Terms
Subject to Removal by the President
U.S. District
Judge Ward
McAllister, Jr.
First U.S. Judge in Alaska
Son of well-connected San
Francisco attorney; grandson
of 1st federal circuit judge in
the West, Matthew Hall
McAllister, Sr.
Rev. Sheldon Jackson
Established Presbyterian Mission
School at Sitka
Early Proponent of Civil
Government in Alaska
Secretary of Education for Alaska
Very Influential Nationally
Saw Alaska as lawless & debauched
Presbyterian Mission School at Sitka
Founded by Rev. Sheldon Jackson
In re Can-Ah-Couqua
The case that ended Judge
McAllister’s short judicial
career.
ELECTIONS
“The judges (in an elective system) had
to file in a competitive political field
every two years, and there was always
that undercurrent that litigants were
contributing to the judges’ campaign
funds…It does not seem to be right that a
man sitting on the bench should be the
subject of contributions from various
and sundry people, either presently
litigants or people with cases pending.
The best soap-box orator often times
gets elected and your better
attorneys…would hesitate to throw their
hats into the ring and get into that kind
of a circus...So I think it is positive with
some decency of approach (that) the
judicial council will seek for the best
available timber.”
-RALPH RIVERS
I am a partisan myself, but I don't believe that our judiciary should be
subject to the influences where they would have to go to any clubhouse
to secure their nomination or have to secure funds and sometimes
excessive and exorbitant funds for the purposes of being elected. I
might also point out that one of the dangers of the elective system is
the fact that a judge, whenever he makes a decision, he has to keep
peering over his shoulder to find out whether it is popular or
unpopular. If we determine the validity of our laws in terms of
popularity as the general acceptance, we are then not a government of
laws on which we pride ourselves.”
- George McLaughlin
“I believe without qualification …that
all of us here want an independent
judiciary, a judiciary that will not be
swayed by the public will at any
particular moment, a judiciary that
will not be subject to political
pressure, a judiciary that will not be
subject to pressure from the executive
branch of government.”
-EDWARD DAVIS
-Frank Barr
Fairbanks Delegate,
Pilot, U.S. Marshal
“ So in balancing one method against the other, in my own
mind I would say that by election you have no guarantee
whatever of ability. You do have nearly one hundred per cent
guarantee if appointed. In integrity, you have no guarantee
whatever of integrity in election. In appointment you have
some guarantee of integrity. “
JUSTICE SANDRA
DAY O’CONNOR
U.S. Supreme Court
Justice (Ret)
“The founders realized there
has to be someplace where
being right is more important
than being popular or
powerful, and where fairness
trumps strength. And in our
country, that place is supposed
to be the courtroom.”
OUTCOME FROM THE FULL CONVENTION:
Amendment to require judicial elections
rejected by a vote of
51 - 2
“MERIT SELECTION”
Article 4 - The Judiciary
§ 5. Nomination and Appointment
The governor shall fill any vacancy in an office of supreme court justice or superior court judge by
appointing one of two or more persons nominated by the judicial council.
§ 6. Approval or Rejection
Each supreme court justice and superior court judge shall, in the manner provided by law, be
subject to approval or rejection on a nonpartisan ballot at the first general election held more than
three years after his appointment. Thereafter, each supreme court justice shall be subject to
approval or rejection in a like manner every tenth year, and each superior court judge, every sixth
year.
§ 8. Judicial Council
The judicial council shall consist of seven members. Three attorney members shall be appointed
for six-year terms by the governing body of the organized state bar. Three non-attorney members
shall be appointed for six-year terms by the governor subject to confirmation by a majority of the
members of the legislature in joint session. Vacancies shall be filled for the unexpired term in like
manner. Appointments shall be made with due consideration to area representation and without
regard to political affiliation. The chief justice of the supreme court shall be ex-officio the seventh
member and chairman of the judicial council. No member of the judicial council, except the chief
justice, may hold any other office or position of profit under the United States or the State. The
judicial council shall act by concurrence of four or more members and according to rules which it
adopts.
Alaska Bar Association
Governor
*
*
*
*
*
*
Attorney
Member
Attorney
Member
Attorney
Member
Public
Member
Public
Member
Public
Member
Appointed by ABA Board of
Governors based on vote of
membership; one from each
of three judicial districts.
*
Chief
Justice
(Votes
Only
To Break
Ties) Tie)
* Appointed by the
Governor & confirmed by
the legislature.
SELECTION OF ALAKSA’S JUSTICES AND JUDGES
Notice of Vacancy
Distributed to Attorneys Statewide
Specifies qualifications:
1) Citizen of U.S. & Alaska
2) Resident of Alaska-5 Years
3) Engaged in active practice of law-8 years
4) Licensed to practice law in Alaska
Application
Requires 24 pages of details on lifelong:
1) Personal History
2) Education
3) Military Service
4) Employment & Experience
5) Public Service
6) References & Recent Case History
How Does the Judicial Council Gather Information About Judicial Applicants?
Asks people who know the applicant
 Surveys Alaskan lawyers about the qualifications of each applicant.
 Contacts an applicant’s present and past employers and the applicant’s references
 Sends questionnaires to judges and lawyers involved in cases handled by the
applicant
Reviews the applicant’s qualifications
 Reviews legal and life experience, education, and community service
 Investigates disciplinary matters, credit history, criminal records, and lawsuits
Investigates potential conflicts of interest and any other issues
Assesses an applicant’s writing sample
Asks the public
 Holds a public hearing, and encourages the public to comment about applicants
Interviews each applicant
Investigation
 Bar Surveyed
Professional competence
Integrity
Fairness
Judicial temperament
Suitability of experience
Overall rating
Public Comment Solicited
JUDICIAL APPLICANT
Council evaluates ratings and comments
Attorney A
Attorney B
Attorney C
Attorney D
Attorney E
Council interviews applicants in person
Council holds public hearings in the community where the
judge will sit
Nomination Process
Council members vote on which applicants to nominate to
the Governor to fill the vacancy
Council forwards at least two nominations to the Governor
Appointment Process
Governor has 45 days to make an appointment from the
nominations submitted
RETENTION ELECTION FOR ALASKA’S JUSTICES AND JUDGES
VOTER RETENTION
Judges in Alaska stand before the voters for retention within
2-3 years after their appointment, then at intervals:
Supreme Court: Every 10 Years
Court of Appeals: Every 8 Years
Superior Court: Every 6 Years
District Court: Every 4 Years
Investigation
 Surveys of 1000s of Alaskans (peace and probation
officers, court employees, attorneys, jurors, social workers,
child advocates, court watchers)
Judicial Council Questionnaire (to judges)
Extensive Feedback (attorneys in recent cases,
community-based volunteer court observers)
Peremptory challenge, recusal & appellate affirmance
rates
Any disciplinary action or civil/criminal litigation;
conflict of interest statements
ALASKA JUDICIAL COUNCIL 2014 Retention Information
The Alaska Judicial Council unanimously recommended that Alaskans vote "YES"
to retain these judges:
Supreme Court Justice
Justice Craig F. Stowers
First Judicial District
Superior Court Judge Louis James Menendez - Juneau District Court Judge Kevin G.
Miller - Ketchikan
Second Judicial District
Superior Court Judge Paul A. Roetman - Kotzebue
Third Judicial District
Superior Court Judge Andrew Guidi - Anchorage Superior Court Judge Gregory Miller Anchorage District Court Judge Jo-Ann M. Chung - Anchorage District Court Judge
Brian K. Clark - Anchorage District Court Judge Sharon A.S. Illsley - Kenai District
Court Judge Gregory Motyka - Anchorage District Court Judge Stephanie Rhoades Anchorage District Court Judge John W. Wolfe - Palmer
ALASKA JUDICIAL COUNCIL 2014 Retention Information
(Continued)
Fourth Judicial District
District Court Judge Ben Seekins - Fairbanks
The Alaska Judicial Council unanimously recommends that Alaskans vote "NO" against the
retention of:
District Court Judge William L. Estelle - Palmer
Judicial Council Surveys
Attorney and Peace Officer Survey
Court Employee Survey
Juror Survey
Other Information
Peremptory Challenge Rate (How often a party requested assignment of a new judge)
Recusal Rate (How often a judge disqualified himself or herself due to a conflict of
interest)
Appellate Affirmance Rate (How often a trial judge was affirmed or reversed on
appeal)
Alaska Judicial Observers Ratings (Community-based volunteer court observers)
Public Hearings
“No” Recommendations from the ALASKA JUDICIAL COUNCIL:

Unethical Conduct
Inappropriate Ex Parte Communication with Prosecution
•District Court Judge Dennis Cummings, Bethel
RETAINED, LATER
RESIGNED
Providing prosecution with blank orders to sign; sexual harassment
•District Court Judge David Landry, Kenai
NON-RETAINED
Filing inaccurate affidavits to meet six-month advisement rule
•District Court Judge William Estelle, Palmer
RETAINED

Mental Health Issues
•District Court Judge Richard Postma, Anchorage
NON-RETAINED
PROPOSAL TO AMEND ARTICLE IV, SECTION 8 OF THE
ALASKA CONSTITUTION – THE JUDICIAL COUNCIL
SENATE JOINT RESOLUTION 3
AND
JUDICIAL INDEPENDENCE
29-LS0228\A
29-LS0228\A
SENATE JOINT RESOLUTION NO. 3
1
judicial council. No member of the judicial council, except the chief justice, may hold
2
any other office or position of profit under the United States or the State. The judicial
3
council shall act by a majority vote [CONCURRENCE] of a quorum of at least
IN THE LEGISLATURE OF THE STATE OF ALASKA
4
TWENTY-NINTH LEGISLATURE - FIRST SESSION
5
6
BY SENATOR KELLY
Introduced: 1/21/15
Referred: State Affairs, Judiciary, Finance
seven [FOUR OR MORE] members and according to rules which it adopts.
* Sec. 2. Article XV, Constitution of the State of Alaska, is amended by adding a new
section to read:
7
Section 30. Judicial Council Additional Members. If the 2016 amendment
8
increasing the membership of the judicial council (art. IV, sec. 8) is adopted, the first
9
term for the new non-attorney members of the judicial council shall be for two, four,
10
A RESOLUTION
1
Proposing amendments to the Constitution of the State of Alaska to increase the number
2
of members on the judicial council; relating to the initial terms of new members
3
appointed to the judicial council; and relating to the confirmation of members of the
4
judicial council.
5
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA:
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and six years respectively.
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* Sec. 3. The amendments proposed by this resolution shall be placed before the voters of
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the state at the next general election in conformity with art. XIII, sec. 1, Constitution of the
13
State of Alaska, and the election laws of the state.
* Section 1. Article IV, sec. 8, Constitution of the State of Alaska, is amended to read:
7
Section 8. Judicial Council. The judicial council shall consist of ten
8
[SEVEN] members. Three attorney members shall be appointed for six-year terms by
9
the governing body of the organized state bar. Six [THREE] non-attorney members
10
shall be appointed for six-year terms by the governor. The three attorney members
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and six non-attorney members shall be subject to confirmation by a majority of the
12
members of the legislature in joint session. Vacancies shall be filled for the unexpired
13
term in like manner. Appointments shall be made with due consideration to area
14
representation and without regard to political affiliation. The chief justice of the
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supreme court shall be ex-officio the tenth [SEVENTH] member and chairman of the
SJR003A
-1New Text Underlined [DELETED TEXT BRACKETED]
SJR 3
SJR 3
-2New Text Underlined [DELETED TEXT BRACKETED]
SJR003A
Governor
*
*
*
*
*
*
Public
Member
Public
Member
Public
Member
Public
Member
Public
Member
Public
Member
Alaska Bar Association
**
**
**
Attorney
Member
Attorney
Member
Attorney
Member
Chief
Justice
(Votes Only
To Break
Tie)
Proponents of SJR 3 say that change is necessary because :
1. “Lawyers dominate the council.”
BUT
Most of council’s votes are unanimous (81%)
Ties between lawyer and public members are rare (< 2%)
2. “The Chief Justice votes with lawyer members.”
BUT
The Chief Justice rarely votes because ties are rare (6%)
In the 16 cases with public member-lawyer ties, the Chief
Justice voted with public members 5 times so the
concern applies to only 11 cases involving 9 applicants in
30 years.
Constitutional Convention Judicial Committee
Comments about Lawyer’s Role on the Judicial Council
The whole theory of the Missouri plan is that in substance, a select and
professional group, licensed by the state, can best determine the
qualifications of their brothers.
The intent of the Missouri Plan was in substance to give a predominance
of the vote to professional men who knew the foibles, the defects and the
qualifications of their brothers
It is unquestionably true that in every trade and every profession the
men who know their brother careerist the best are the men engaged in
the same type of occupation
The theory is you have a select group. The lawyers know who are good
and they know who are bad.
Delegate and Judicial Committee Chairman, George McLaughlin
SJR 3 and PARTISAN POLITICS
GOVERNOR SELECTS 6 0F 9 OF JUDICIAL COUNCIL
MEMBERS
LEGISLATURE CONFIRMS ALL JUDICIAL COUNCIL MEMBERS
BUT
PREMISE OF MERIT SELECTION OF
JUDGES IS TO LIMIT PARTISAN POLITICS
“If you require confirmation of your attorney
members you can promptly see what will
happen…no longer is the question based
solely on the qualification of the candidate
for the bench…All you have is one other
political method of selection of your judges.”
- George
McLaughlin
“The purpose of the
draft as now written is
to have a non-partisan
selection of these lawyer
members, and the
minute you adopt
something like this, you
are making a partisan
proposition out of it.
We want that to carry
through to a nonpartisan selection of
judges, so I think our
thinking is quite clear.”
- Ralph Rivers
OUTCOME FROM THE FULL CONVENTION:
Amendment to require legislative confirmation
of lawyer members of the council
rejected by a vote of
49 - 4
ALTERNATIVE DISPUTE RESOLUTION
EARLY RESOLUTION PROJECT
JUDICIAL SETTLEMENT CONFERENCES
MEDIATION
ARBITRATION